R v Newchurch

[2014] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NEWCHURCH

[2014] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Bampton)

7 May 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

The appellant pleaded guilty to trafficking in methylamphetamine.  The appellant was sentenced to two years and five months’ imprisonment with a non-parole period of ten months’ imprisonment.  The appellant contended that the sentencing Judge erred in declining to suspend the sentence.

Held:   

1.  The sentencing Judge failed adequately to consider the appellant’s prospects of rehabilitation (at [10] - [12]).

2.  Appeal allowed.  The Court imposed a sentence of two years and two months’ imprisonment with a non-parole period of seven months’ imprisonment, suspended upon the defendant entering into an 18-month supervised good behaviour bond (at [2], [13]).

Controlled Substances Act 1984 (SA) s 32(3); Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(c), referred to.
R v Kong (2013) 115 SASR 425, applied.

R v NEWCHURCH
[2014] SASCFC 45

Court of Criminal Appeal:       Sulan, Blue and Bampton JJ

1. THE COURT:      The appellant, Francis George Newchurch, pleaded guilty to trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The maximum penalty for the offence is ten years’ imprisonment or a fine of $50,000 or both. The offending occurred on 1 March 2013 at the appellant’s home in Parafield Gardens where police found 1.61g of methylamphetamine. The sentencing Judge imposed a head sentence of imprisonment for two years and five months with a non-parole period of ten months. The appellant submitted that the Judge erred in declining to suspend the sentence.

2. After hearing counsel, the Court allowed the appeal, set aside the sentence and imposed a sentence of two years and two months’ imprisonment with a non‑parole period of seven months’ imprisonment.  The head sentence and non‑parole period were reduced having regard to a period of three months that the appellant had been in custody.  The sentence was suspended upon the appellant entering a bond to be of good behaviour for 18 months.  The conditions of the bond are that the appellant is to be under the supervision of a community corrections officer for the period of the bond and participate in any assessment, courses, treatment or counselling as directed by his community corrections officer. Further, the appellant is to attend upon his general practitioner and cooperate in the preparation of a mental health plan, and thereafter attend specialist psychological services pursuant to that plan.  The Court indicated that it would give reasons later.  These are those reasons.

   Background

3. On 1 March 2013, police attended at the appellant’s home.  Outside the kitchen on the ground near an open window, police found a plastic container of methylamphetamine.  The substance weighed 2.15 grams, of which 1.61 grams was pure methylamphetamine.  The value of the methylamphetamine was between $1250 and $2500 and, if cut once, between $2500 and $5000.  It was accepted that the offence was not an isolated incident.  The police found $7650 and some items of drug paraphernalia, including scales, in the house.  The appellant was sentenced on the basis that he used methylamphetamine and sold some to friends and relatives to assist him in financing his own use.

4. The appellant was 27 years old when he was arrested.  He had been in a stable relationship with his partner for around 16 months.  His partner relies partly on the appellant’s income.  He had been in steady employment as a labourer.  He had worked as a security officer with three different agencies over four to five years.  The appellant claims to have been drug free during his employment as a security officer, due to the testing practices of the agencies.  The appellant was then employed by the Department of Correctional Services and was in that employment at the time of his arrest for this offence.  As a consequence of being charged, he was dismissed from that employment.

5. The appellant experienced a difficult upbringing.  His mother abused alcohol and, at the age of five, he and his sister were abandoned by her.  His father, who was estranged from this mother, had little to do with his upbringing.   The appellant was a ward of the State while being raised by his aunties.  He completed Year 11 at school.  He commenced using cannabis whilst at school.  Later, he began using other drugs, including methylamphetamine.  The appellant reconciled with his mother when he was 21.  In the meantime, he had become re‑acquainted with his father.  He has no previous convictions.

   The Sentence

6. The Judge adopted a starting point of a head sentence of three years’ imprisonment, which he reduced to two years and five months having regard to the appellant’s plea of guilty at arraignment.[1]  The Judge fixed a non-parole period of ten months.  He ordered the amount of $7650 to be forfeited.

   [1]    Criminal Law (Sentencing) Act 1988 (SA), s 10C(2)(c).

   The Appeal

7. The sole ground of appeal is that the sentencing Judge erred in not suspending the sentence. Counsel for the appellant submitted that the sentencing Judge failed adequately to consider the appellant’s prospects of rehabilitation, having regard to his age, good record, employment history and future employment which is available to him.

8. It was submitted to the Judge that the appellant had good employment prospects.  The appellant had been in regular employment before being sentenced to imprisonment.  His counsel confirmed that employment was available to the appellant at the time of sentence, and remains available upon his release from custody.

9. There is no dispute that, after his arrest, the appellant ceased using drugs and ceased his association with previous associates who had been involved in the abuse of drugs.  Although the Judge referred to difficulties faced by the appellant in his childhood, he does not appear to have given sufficient weight to the fact that, despite his difficulties, the appellant had not offended in the past.  The Judge made no reference to the appellant’s prospects for rehabilitation. The Judge considered that suspension was not appropriate, having regard to general deterrence and, in particular, the significance that it plays in sentencing offenders for trafficking in methylamphetamine.

10. We agree that general deterrence is a significant factor for offences of trafficking in drugs.  However, in considering whether good reason exists to suspend a sentence, a judge is required to have regard to the personal circumstances of a defendant.  Rehabilitation is an important feature of sentencing and particularly when a defendant has led a blameless life, has a stable home life, and has demonstrated that he has good prospects for rehabilitation.  A further factor is that the offending was at the lower end of the scale for this type of offence.  The appellant sold to friends and relatives, in order to fund his drug use. 

11. We accept that there can be offending which is so serious that a suspended sentence will not be appropriate, even taking into account very positive factors of rehabilitation.  In our view, the offending in this case was not so serious as to outweigh the appellant’s positive personal circumstances and prospects in the future.  We consider that the sentencing Judge failed to have sufficient regard to those matters in not finding good reason to suspend the sentence.[2]  The Judge made no reference to the appellant’s prospects of rehabilitation.

    [2]    R v Kong (2013) 115 SASR 425 at [97] - [101] per Kourakis CJ, Sulan and David JJ.

12. In the circumstances, we consider that the sentencing discretion miscarried.

13. The appeal was allowed and the sentence earlier referred to was imposed.